“Well Settled Law” In Lieu of Balls

Gideon at A Public Defender has been keeping up with the bizarre saga of Philip Russell, a Connecticut attorney under federal indictment for violating SOX (if you can believe that) by having destroyed the kiddie porn photos on a church computer at a time when there was no investigation or prosecution pending or anticipated.

Russell’s client, the Greenwich Christ Church (not a bad client, I would say), did what any self-respecting church would do when it found child pornography on its church computer:  It turned to its lawyer for help.  No fed was knocking on the church door.  There was no hint of an investigation.  There was no reason to believe that anyone would ever know that some sick, disgusting human being using this computer purchased with monies from the tithing of its congregents (I’m making this part up, since I have no idea where the money came from to buy the computer and in Greenwich, they could just as easily live off the interest from the Church’s trust fund), would download photographs that would sicken any normal human being. 

So Russell finds himself in the position of having to decide what to do with this computer.  The Church no doubt wants its computer back, since it wouldn’t have gotten the computer if it didn’t have any need for it,  But the Church does not want this pics on it.  Russell, in the meantime, knows of the photos as a result of confidential communications (no argument from any source about whether this was as confidential as it comes) and has to decide what to do about it.  He can’t keep the kiddie porn pics, for then he would be violating the law. 

So Philip Russell does the only reasonable thing possible.  He deletes the horrific photos.  BAM, he’s indicted for obstruction, having destroyed evidence.  Up to now, there’s no factual dispute.

The Government, overreaching for the same reason that dogs’ tongues are perpetually busy, contends that under SOX, there need not be a federal investigation pending or specifically anticipated, but merely foreseeable.  There’s the rub.  You see, any time a lawyer becomes aware of a crime, is it not always foreseeable that an investigation or prosecution may follow?  It’s a definitional thing. 

So Russell moves to dismiss.  Motion denied, says federal Judge Alan Nevas:

“In sum, there is no merit to Russell’s arguments, which essentially ask the court to make a factual determination that the government cannot prove either a nexus or intent,” Nevas wrote. “It is well settled that such factual determinations are for a jury, not the court, to decide after hearing the government’s proof and being instructed on the law.”
The words “well settle” are the dead giveaway that Judge Nevas punted.  When a judge doesn’t want to take the heat for making the right decision, he falls back on platitudes that deflect responsibility for doing his job.  while it is obviously a truism that juries, not judges, make findings of fact, judges remain the gatekeeper of whether there really is an issue of fact to decide.  In other words, just because some federal prosecutor screams out the words “factual dispute” doesn’t divest the judge of all responsibility for filling out his robes.

Only legitimate and material factual disputes need go to a jury.  Rhetorical disputes must first pass muster as a matter of law to determine whether they are real.  In the Russell case, there is no real dispute.  The Government doesn’t contend that Philip Russell knew of any investigation that he was impeding, or got wind of a potential reason to belief that an investigation was coming.  But the Government position is legal, not factual.  If it was foreseeable, then he’s guilty.

But it’s always foreseeable, in the existential sense.  When wrong happens, prosecution is always possible.  The point of this is that under the Government’s theory of prosecution, lawyers (the guys who are ethically and legally obliged to maintain client confidences) would have no option but to turn the evidence over to the Government immediately.  They can’t hold it (crime), they can’t destroy it (crime) and they can’t return it (crime).

Assuming Judge Nevas didn’t manage to get himself a life appointment because he’s a dope, he has to understand this.  It’s not rocket science.  Is he really saying that a client availing oneself of the constitutional right to counsel creates a per se crime for the lawyer?  Well, yes, that’s apparently what he’s saying when he fails to use his gatekeeper function to reject this theory. 

And that’s the point: This is a theory, not a fact dispute.  It is a theory of criminal liability that tears at the fundamental function of a lawyer.  And the judge has covered up his refusal to do his job under the guise of “well settled” law. 

Perhaps there’s a lesson to be learned from the dog. Just follow his tongue to see what’s missing from this decision.